IN THE CASE OF:  	  

		BOARD DATE:  	  7 April 2015

		DOCKET NUMBER:  AR20140014672 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge from under other than honorable conditions (UOTHC) to a general discharge (GD) or an honorable discharge (HD).

2.  The applicant states he regrets any unfortunate circumstances that led to the UOTHC discharge.  
   
3.  The applicant does not provide any supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 23 October 1984, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  

3.  On 15 May 1990, the applicant was pending a court-martial for hindering the apprehension of two fellow Soldiers who had committed assault by intentionally inflicting grievous bodily harm by driving them away from the scene of the crime, violating a general order by committing adultery, and committing larceny by stealing approximately $500.00 from another Soldier.  

4.  The applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ and of the possible effects of a UOTHC discharge if a request for discharge for the good of the service in lieu of trial by court-martial were approved.  

5.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

a. He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* he understood he could be discharged UOTHC and furnished a UOTHC Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  He indicated he would not submit a statement in his own behalf.

6.  On 18 May 1990, the applicant's request was approved, and on 31 May 1990, he was discharged with his service characterized as UOTHC.   

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An HD was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A GD was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The available records show the applicant was pending a court-martial for violation of a general order, adultery, and hindering apprehension of two Soldiers who had committed intentional and grievous assault.  He consulted with counsel and knew the possible effects of the UOTHC discharge when he requested to be separated for the good of the service.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  Based on the applicant's serious misconduct and pending court-martial, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X____  ____X____   DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




ABCMR Record of Proceedings (cont)                                         AR20140001770



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014672



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1